Friday, 27 February 2015

Nearly twelve years
since the conflict began, the Iraq war is still controversial, with many
believing that Tony Blair and George W. Bush launched an ‘illegal war’. For
these critics, the only satisfying result would be the trial of Bush and Blair
on war crimes charges. I think this will happen one day – on the condition that
the jury consists of flying pigs. (Perhaps they flew off with the mythical
weapons of mass destruction).

For now, then, in
light of the mysterious death of a scientist and the dubious delay in a planned
investigation of the war, critics of the conflict have to litigate these issues
indirectly. There is a link to EU law here – as set out in yesterday’s Shepherdjudgment of the CJEU.
Unfortunately that judgment is highly problematic, not because the Court avoids
the key issue of the war’s legality, but because of its unconvincing
interpretation of some key issues concerning the status of deserters in EU
asylum law.

Background

The Geneva
Convention on refugee status defines a refugee as a person outside his or her
country of origin, who is unwilling or unable to return to that country due to
a well-founded fear of persecution on grounds of race, religion, nationality, particular
social group or political opinion. But it excludes refugee status from those
who have committed particularly heinous acts, including war crimes.

These rules are set
out again, and further elaborated, in the EU’s Qualification Directive. In
particular, there is a further definition of the concept of ‘persecution’,
which (among other things) includes legal or policing measures, or prosecution
or punishment, which is ‘disproportionate or discriminatory’ (the ‘unfair
punishment’ rule), and ‘prosecution or punishment for refusal to perform
military service in a conflict’, if ‘performing military service would include crimes
or acts falling under the exclusion clauses’ (the ‘military service’ provision).

The Shepherd case concerns an American soldier
who developed doubts about the legitimacy of the Iraq war. Although he was not
in combat, but rather carried out maintenance work on helicopters, he feared
that he was contributing to the commission of war crimes. So he deserted from
the US army, but expected that he would be prosecuted in the USA as a result.
To avoid this, he applied for asylum in Germany, and the German courts sent
questions to the CJEU to clarify the interpretation of the Qualification
Directive.

Judgment

The Court began by
confirming that it would only interpret the rules in the Directive on the concept
of persecution, although the Advocate-General’s opinion had also examined the
rules on the grounds of persecution
and exclusion. As a result, the Court’s judgment says nothing (for instance)
about the definition of ‘war crimes’.

Next, the Court
made four main points about the interpretation of the ‘military service’
provision. First of all, the definition of ‘military service’ included support
staff, and the circumstances surrounding enlistment in the military were
irrelevant. Implicitly it doesn’t matter whether the soldier was conscripted or
volunteered. However, the Court stated that being part of the military was a ‘necessary
but not sufficient’ condition for the rule to apply.

Secondly, the Court
elaborated upon the conditions for applying the provision, setting out four
elements to be considered: there must be a relationship with an actual
conflict; the rule can apply even to indirect participation in a conflict, if
the soldier’s tasks could ‘sufficiently directly and reasonably plausibly, lead
them to participate in war crimes’ (the possibility of prosecution before the
International Criminal Court being irrelevant); there must be a likelihood of
war crimes being committed in future (again, the possible role of the International
Criminal Court is irrelevant); and the past conduct of the unit is not an
automatic indicator that war crimes will be committed in future. Overall, the
test is whether ‘there is a body of evidence which alone is capable of
establishing’ whether it is ‘credible’ that war crimes will be committed.

Thirdly, the Court
examined the context of the conflict in question, addressing three issues. If
there was a Security Council resolution authorising the conflict, there was ‘in
principle, every guarantee’ that war crimes will not be committed, although this
was not an absolute rule. This also applied to an ‘operation which gives rise
to an international consensus’. And if national law of the country of origin
provided for the ‘possibility’ of prosecution of war crimes, then it was ‘implausible’
that such crimes will be committed. Overall, the asylum-seeker has to show that
there is ‘sufficient plausibility’ that his unit is ‘highly likely’ to commit
war crimes.

Fourthly, the Court
looked at the soldier’s individual circumstances. Desertion has to be the only
way in which he could avoid participation in war crimes, and the Court pointed
out that Mr. Shepherd had enlisted and then re-enlisted in the US armed forces.

Finally, the Court
interpreted the ‘the ‘unfair punishment’ rule. The starting point was that
Member States are entitled to maintain an armed force, including by means of
punishing soldiers who desert. A penalty of up to five years in prison was not disproportionate,
in the CJEU’s view. Nor was Mr. Shepherd’s punishment discriminatory, since there
was no comparator for him. And the social ostracism that might result from his
desertion was legally irrelevant, since it was only a consequence of the
punishment.

Comments

Let’s begin with
the parts of the judgment which are fairly convincing. The Court’s definition
of ‘military service’ makes sense in light of the wording of the Directive, as
does its interpretation of the conditions for applying this provision.

Unfortunately, the
majority of the Court’s reasoning is not as persuasive. As regards the ‘unfair
punishment’ rule, the Court should have made clearer why a lengthy prison
sentence is acceptable for a deserter, but not (according to prior case law) an
LGBTI refugee. (The obvious answer is that an expression of human sexuality is
prima facie an exercise of the human right to a private life). On discrimination,
the Court’s failure to find a comparator stems from its unwillingness to look
at the grounds of persecution: obviously Mr. Shepherd could claim
discrimination as compared to persons in other social groups or holding other
political opinions. And as for social ostracism, the Court simply asserts that
such ostracism cannot be severed from the punishment for desertion. But this is
not necessarily correct. However, it should be noted that the judgment leaves
open the possibility that social ostracism can exist in the absence of official
punishment in another case.

The Court’s reasoning
on the context of military conflict is quite implausible. Why should the mere
existence of a Security Council resolution amount to a ‘guarantee’ that war
crimes will not be committed? In any event, this begs the enormous question as
to whether the Iraq war was indeed authorised by such a resolution. This line
of reasoning is inconsistent with the Court’s ruling in the Kadi line of cases that the mere
existence of a Security Council process was insufficient to guarantee human
rights. Many people start out as naive idealists about international law, but end
up as disappointed cynics; the Court seems to have undertaken this journey the
other way around.

The idea that an ‘international
consensus’ could lead to the same result is baffling. Unlike a Security Council
resolution, which is clearly a real thing (leaving aside the question of how to
interpret one), there is no reference to ‘international consensus’ in the
Directive, and the Court makes no suggestion that such a concept exists in
international law. How would it even be defined? The State being invaded
clearly does not participate in such a ‘consensus’, and if there were such
widespread international agreement, why would it not have resulted in a
Security Council resolution anyway? The only plausible explanation for this
part of the judgment is that Tony Blair hacked into the Court’s computer
system, integrating his beliefs about liberal intervention into the heart of EU
law. Let’s hope he didn’t charge the Court his usual fee.

Nor is it
convincing that the ‘possibility’ of national prosecution for war crimes is
sufficient. If it were, why has the international community spent decades
building an international criminal court system? The Advocate-General’s opinion
gives several examples (such as My Lai) where such a possibility was clearly
insufficient.

Finally, as regards
the soldier’s individual circumstances, the Court failed to consider the
possibility that the conduct of the war changes, that facts about war crimes
come to light, or that the solider simply changes his mind. The latter
possibility is clearly relevant, since public opinion hardened against the Iraq
war as it went on, and the Advocate-General spells out how Mr. Shepherd came to
change his own mind. But the final word on this point should go to Bob Dylan:

Thursday, 19 February 2015

Here are the questions and background information in a new Dutch reference to the CJEU, the first case concerning the latest version of the EU's asylum responsibility rules (known as the 'Dublin III Regulation'). It's a rough, unofficial translation from the original. Thanks to Flip Schuller, lawyer at Prakken D'Oliveira, for this.

Preliminary questions from the court The Hague
(Den Bosch)

Case number: AWB 14/12282

Brief summary of the
case

The applicant applies
for asylum on 04-03-2014. Based on research in the EU-VIS-system it turns out
that the applicant received a visa from the French representation in Iran on
the date 17-12-2013. This visa was valid from 17-12-2013 until 11-02-2014.

On 07-03-2014 the State
Secretary for Security and Justice requested France to take charge of the
application of the applicant. The French authorities accepted this request on 5-5-2014.

The State Secretary has
the view that France is responsible for determining the application for
international protection based on article 12(4) of Regulation 604/2013. The
applicant had a visa and furthermore the French authorities accepted the
take-charge request from NL. Furthermore, the State Secretary finds that the
applicant did not prove that he left the territories of the EU MS since he did
not provide with documents to underline his travel from France-Iran and
Iran-Netherlands. He states that the submitted documents are prepared only on
the request of the applicant which lead to the conclusion that these documents
are not reliable (not objective evidence). Therefore the State Secretary finds
it not credible that the applicant did actually leave the territory of the EU
MS, even if one should have the view that the delivered documents are
authentic.

The applicant declared
that he made use of the visa on 18-12-2013, that he slept one night in Paris
and then returned to Iran. Then he travelled on 20-02-2014 illegally from Iran,
through Turkey and finally arrived in the Netherlands somewhere around
01-03-2014. The applicant declared that his passport with stamps is taken by
the Sepah-e Pasdaran-e Enqelab-e and that he doesn’t have evidence to submit
about his travel. The applicant emphasizes that he did not have troubles in
Iran before and that the problems firstly arose on 15-02-2014.

To underline the
applicant resided in Iran after being in France, he submitted the following
documents:

-A
statement from his employer;

-A
statement from a physician;

-A signed
agreement on the sale of property. With regard to that the applicant states
that it is dated on 10-01-2014 and that he had to sign this agreement in
person.

The preliminary
questions are:

1. What is the extent
of article 27 of Regulation 604/2013 [the right to an appeal], whether or not
in conjunction with consideration 19 of the Preamble of Regulation 604/2013?

Does an applicant, in
a situation like this, where the applicant firstly after a claim-acceptance is
confronted with the Dublin claim and the applicant thus evidence submits after
the claim-acceptance which could lead to the conclusion that not the requested
EU MS but the requesting EU MS is responsible for the application for
international protection, and that then the requesting EU MS does not examine the
submitted evidence nor submit it to the requested EU MS, based on this article
(thus art. 27) has a right to an
(effective) remedy against the application of the criteria for determining the
EU MS responsible (mentioned in chapter III of Regulation 604/2013?

2. Is, in case the
applicant based on the Regulation 604/2013, and also based on Regulation
343/2003, in principle doesn’t have an appeal on the incorrect application of
determining the EU MS responsible when the requested EU MS has accepted the
take-charge request, the view of the State Secretary for Security and Justice
correct that this starting point only has an exception in family situations as
mentioned in art 7 of Regulation 604/2013, or could there be other particular
facts and circumstances considerable on which an applicant can appeal to an
incorrect application for determining the EU MS responsible?

3. In case the answer
on question 2 is that also apart from family-situations other circumstances
could lead to the conclusion that an applicant can appeal on the basis of an
incorrect application of the criteria for determining the EU MS responsible,
could that be the facts and circumstances mentioned in consideration 12 of this
judgment? [These are
the documents mentioned in the summary of the case.]

While
the report rightly urges for an ever-increasing ‘internet-friendly copyright
law’, the report might have gone too far in relation to parodies. Article
5.3(k) of the InfoSoc Directive currently provides the possibility for EU
Member States to introduce a parody exception for the purposes of parody,
pastiche and caricature to the exclusive right of reproduction in their
national copyright laws (this opportunity was seized by the UK which now
includes a parody exception in section
30A CDPA). This provision was interpreted by the Court of
Justice of the European Union in the Deckmyn case, guiding national
courts in their application of the exception to particular facts (for comments
on this decision see here
and the AG’s opinion see here).

At
17 on page 6 of the report, Julia Reda suggests ‘that the exception for caricature, parody and pastiche should apply
regardless of the purpose of the parodic use’. Without
further explanations, such a broad exception raises concerns.

The
parody exception is an exception to the right-holder’s exclusive right of
reproduction. As such, international treaties subject it to the application of
the three-step test (Berne
Convention art. 9(2), TRIPS
Agreement arts. 9(1) and 13; and, WCT
arts. 1(4) and 10). This test requires any exceptions in national legislation to
be limited to ‘certain special cases,
provided that such reproduction does not conflict with a normal exploitation of
the work and does not unreasonably prejudice the legitimate interests of the
author’. The French
authorities’ response appropriately expresses concerns
that a parody exception applicable outside any purpose of parody is unlikely to
meet the first step of ‘certain special cases’. As this requirement means that a shapeless provision exempting broad
series of uses should not be tolerable and reflects the need for legislators to
reconcile opposing interests.

The exception for the purpose of
parody, caricature or pastiche aims to provide the possibility for parodists to
copy copyrighted works in limited circumstances. The current parody
exception is the result of a compromise in light of the objectives underlying
the exception. The issue
opposes the interests of right-holders (who are entitled to be rewarded for
their creation) against the interest of the users (who need to reproduce prior
works to create the new work). Removing its purpose is likely to
amount to a shapeless exception rebuffed by international obligations.

Yet,
La
Quadrature du Net interprets Julia Reda’s proposal as: ‘to
admit the parody exception for non-humorous creations’. If this is her aim, this could be
achieved through the current wording of the exception for the purpose of
parody.

The Court of Justice of the European
Union has defined ‘parody’ through its requirements in Deckmyn. At para 20, the Court notes that a parody needs: ‘to evoke an existing work while being noticeably different
from it, and, secondly, to constitute an expression of humour or mockery’.

The expression of humour or mockery does not exclude the
expression of criticisms. By requiring the parodist to have a humorous intent,
it is suggested that a broad interpretation should prevail as to include
playful, homage or serious expressions (a glimpse at French case law which
knows a long history of the application of the parody exception shows evidence of
serious expressions and the inclusion of satire). The limit being that the
expression should refrain from being prejudicial to the person of the author or
his work(s). The failure to meet this requirement enables the right-holder to
enforce his or her moral rights (especially the integrity right). Additionally,
where an individual is defamed, this person can bring an action under
defamation law.

Also, the primary justification to the introduction of a
parody exception is to facilitate the exercise of one’s freedom of expression.
While freedom of expression is already considered in the current InfoSoc
Directive (Recital 3 reads: ‘The
proposed harmonisation will help to implement the four freedoms of the internal
market and relates to compliance with the fundamental principles of law and
especially of property, including intellectual property, and freedom of
expression and the public interest.’) and the interpretation of the parody exception in Deckmyn (at para 25), the report (recitals C and D) confirms the
importance of the relationship between copyright and related rights and freedom
of expression both protected under the Charter of Fundamental Rights of the European Union (respectively enshrined in article 17(2) and 11).

Yet, the concerns expressed by Julia Reda concerning the
likelihood of achieving harmonisation of the exceptions throughout the EU
territory under the current InfoSoc Directive (at 10) are shared. Additionally,
her wish to make copyright exceptions mandatory is welcomed (at 11) and would
certainly contribute to the objective of harmonisation desired.

To conclude, it must be reminded that this report is merely a
draft. This one will now be handed over to the Legal Affairs Committeeand to theInternal Marketand Culture committees. Overall, the report makes important proposals but there is
still room for improvement. Against this backdrop, care must be taken regarding
the details of each provision such as for the parody exception to ensure that
the impact of the exception applicable outside parody uses does not disrupt the
balance desired between the interests of right-holders and parodists.

Monday, 16 February 2015

Introduction

Opinion
2/13 is a judgment for
lawyers, not politicians, albeit one with major political ramifications. It
engages in a detailed legal analysis of the relevant provisions of the Draft
Accession Agreement (DAA), as well as key principles of EU law. This
does not always make it an easy read. Others have helpfully explained the Opinion (see the Editorial comments in
(2015) 52 Common Market Law Review 1);
a number have been have been highly critical of it (eg Douglas-Scott, Peers, Lock). I want to see whether it is possible to
adopt a more positive reading of the Opinion.
My remarks focus on three points:

·Was there
a failure to see the wood for the trees in the negotiations?

·Was Opinion 2/13 really a case of judicial
vanity?

·What are
the effects of Opinion 2/13 on
relations between the CJEU and the European Court of Human Rights?

Was there a failure to see the wood for the
trees in the negotiations?

The submissions of the Member States and the
AG’s Opinion focused on the content of the Draft Accession Agreement: are the
various clauses of the agreement compatible with EU law? But I think the Court
felt that the focus on the nuts and bolts of the DAA meant that the negotiators
failed to look at the bigger picture, namely (1) that the EU is not a state; and
(2) that EU law has special characteristics (the language of Article 1 of Protocol
8[1])
which had not been sufficiently accommodated by the DAA.

In other words, the DAA focused on the state of
the soft furnishings of the house – the carpets and curtains - rather than on
the structural soundness of the entire edifice. But the Court was much more
concerned with the edifice rather than the soft furnishings. This is why it
devoted a substantial part of its Opinion
(paragraphs 153-177) to identifying the ‘specific characteristics’ of EU law which
it thought risked being undermined by accession to the ECHR. It identified these
specific characteristics as supremacy, direct effect, conferral of powers,
institutional structure[2], as well as the principle of mutual trust[3]and fundamental rights (why so far down the list?).[4] The Court also emphasised the importance of
the autonomy of EU law - that is its autonomy from both the laws of the Member
States and international law.[5]
The Court said that the autonomy of EU law, together with its specific
characteristics, were preserved by the judicial system intended to ensure
consistency and uniformity in the interpretation of EU law.[6] And the key to this system is the Article 267
TFEU preliminary reference procedure.[7] It was against this backcloth, said the Court,
that the DAA had to be considered.

Having set out its stall, the Court was, I
think, trying to indicate that anything in – or about - the Accession agreement
which jeopardised this core contravened EU law. Putting it another way, the
discussion in paragraphs 153-177 was not put there simply to teach EU lawyers
to suck EU eggs; these paragraphs are integral to the logic that followed. They
provided the context for the Court to consider not just the points raised by
the Member States in their submissions but also the bigger constitutional picture.

This broader constitutional context also helps
to explain the focus on the three substantive issues: Article 53, mutual trust
and Protocol No. 16 which had featured little in the submissions and the AG’s
Opinion. At first sight, it is particularly surprising that Protocol No. 16 was
considered at all. It allows national courts of last resort of states signed up
to the Protocol to make ‘references’ to the European Court of Human Rights for
an interpretation of the Convention.[8]
It was concluded after the DAA had been agreed and it has not yet been brought
into force. Yet the mere existence of Protocol 16 gave the Court the
opportunity to express its views on the centrality of Article 267 TFEU to the EU
system and how the reference procedure might be undermined.

In other words, for the Court, the EU’s team negotiating
the DAA had failed to consider this important constitutional ‘wood’, focusing
too much on the ‘trees’. Addressing the concerns about the potential infringement
of Article 267 TFEU, together with the issues raised about Article 53 TFEU, the
principle of mutual trust and Protocol No 16, was essential before accession
could take place.

Was Opinion
2/13 a case of judicial vanity?

Critics of Opinion
2/13 argue that the Court of Justice was determined to protect its supremacy
at all costs. Despite the fact that all intervening Member States, the AG (with
reservations), and the Presidents’ joint communication indicated support for the DAA, the Court
cussedly did the opposite. Even if this narrative is correct (which I doubt - see
below), I actually think there would be some justification for the Court refusing
to surrender itself so absolutely to the control of a ‘higher’ court. Compared
to the US Supreme Court, it is still a teenager as a court. It continues to
deal with threats to its supremacy from the Constitutional Courts of the Member
States. It has, more or less, successfully held off those challenges. It
certainly saw off a challenge to its supremacy from the power of the UN in Kadi I.[9]
There, its identification of the autonomy of EU law was largely welcomed: David
was seeing off Goliath. The situation is different now. The CJEU has now
assumed Goliath-like proportions. Autonomy may now be mistaken for hubris,
arrogance, disdain for its sister court. However, to the Court of Justice, subordination
to a ‘higher’ court might suggest the Court is not invincible. It has always
been very sensitive to this possibility.

However, I am not sure that the narrative of
judicial vanity is correct. After all the Court does expressly concede that EU
law - and the Court of Justice - are subjecting themselves to external review.[10]It points out that:

It is admittedly inherent
in the very concept of external control that, on the one hand, the
interpretation of the ECHR provided by the ECtHR would, under international
law, be binding on the EU and its institutions, including the Court of Justice,
and that, on the other, the interpretation by the Court of Justice of a right
recognised by the ECHR would not be binding on the control mechanisms provided
for by the ECHR, particularly the ECtHR, as Article 3(6) of the draft
agreement provides and as is stated in paragraph 68 of the draft
explanatory report.

The Court also recognises that there is an
obligation on the EU to accede to the Convention. However, I think the
structure of paragraphs 160-162 is telling. The emphasis is not on the
obligation to accede under Article 6(2) TEU, first sentence. Rather, the Court emphasises
that accession is subject to limitations: accession must ‘not affect the
Union’s competences as defined in the Treaties’ (Article 6(2) TEU, second
sentence), nor must it interfere with the specific characteristics of the EU (Protocol
8, protocols being of equal value to the Treaties). As the Court put it at paragraph
164:

For the purposes
of that review, it must be noted that, as is apparent from paragraphs 160
to 162 above, the conditions to which accession is subject under the Treaties
are intended, particularly, to ensure that accession does not affect the
specific characteristics of the EU and EU law.

This is a subtle change in emphasis but an
important one. Yes, Article 6(2), first sentence, suggests an absolute
obligation to accede. However, when viewed through the lens of Protocol 8 and
the second sentence of Article 6(2) TEU, the Treaty provided not an absolute obligation
to accede but a conditional one.[11]
I think this is the line the Court took.

What are the effects of the Opinion on relations with the ECtHR?

For proponents of the thesis of CJEU vanity,
the effect of the Opinion on
relations with the ECtHR is disastrous. The fact that the Opinion came out just
before Christmas – not a bad time to bury bad news – might support the idea that
the Court of Justice had something to hide.

Again, a closer look at the judgment might
refute, at least in part, this allegation. First, at no point did the Court
criticise the European Court of Human Rights or its case law; its ire seems to
have been directed at the EU’s negotiating team.

Second, as Peers has helpfully digested, the
Court has clearly identified areas for improvement. It has thus provided a
drafting ‘shopping list’ for the EU’s (new?) negotiating team. Some of these items
are relatively straightforward to address. Some, especially those concerning
the CFSP, mutual trust,[12]
Article 53 and Protocol 16, may not be. And the logistics of renegotiating the
DAA in the face of a number of intransigent states both in the EU and outside,
gives considerable pause for thought.

But the fact is that the Court of Justice did
not close the door on EU accession to the ECHR. Leaving it ajar, yes, but not
slamming the door shut completely. And the Court of Human Rights is a sensitive
institution. While its first reaction might be disappointment (see the President’s remarks on the opening of the judicial year), judicial
comity will lead the judiciary in both Courts to engage – probably privately –
with each other.

Conclusions

A number of commentators have been tremendously
critical of the Court’s decision. Their disappointment is understandable. There
was so much hope associated with accession. The effect of Opinion 2/13 is to stymie these hopes. One reading of the Opinion is that the Court did this to
deliver a body blow to the ECtHR and to (re)assert the CJEU’s own supremacy. In
this case the judgment is very much a political one dressed up in lawyers’
clothing. Another reading is that the Court was focused on (re)asserting the
specific features of EU law, which it felt had not been adequately recognised
in the negotiation process. In this case the judgment is very much a legal one.

But there may be a silver-lining. The Court of
Justice has put down a marker that it thinks that it can ‘do’ human rights. It
may now have to prove this. There may be more decisions like Abdida,[13]
delivered by the Grand Chamber on the same day as Opinion 2/13 (discussed by Peers), where the Court adopts a pro-human rights
line (sweetened by numerous references to the case law of the European Court of
Human Rights). Politically this may be very important, not only to start the
process of bridge building with the Court of Human Rights, but also to send out
a message to its own (troublesome) constitutional courts. For what is sauce to
the (CJEU) goose is also sauce for the gander of the national constitutional
courts.

These
remarks were first delivered to a seminar organised by CELS, Faculty of Law, University
of Cambridge, 4 February 2015.

Barnard & Peers: chapter 9

[1]
‘The agreement relating to the
accession of the Union to the European Convention on the Protection of Human
Rights and Fundamental Freedoms (hereinafter referred to as the "European
Convention") provided for in Article 6(2) of the Treaty on European Union
shall make provision for preserving the specific characteristics of the Union
and Union law, in particular with regard to: (a) the specific arrangements for
the Union's possible participation in the control bodies of the European
Convention;(b) the mechanisms necessary to ensure that proceedings by
non-Member States and individual applications are correctly addressed to Member
States and/or the Union as appropriate.’

[3]Para. 168. See
also K. Lenaerts, ‘The Principle of Mutual Recognition in the Area of Freedom,
Security and Justice’, The Fourth Annual Sir Jeremy Lever Lecture, All Souls
College Oxford, 30 Jan. 2015.

[8]Art. 1 says ‘Highest courts and tribunals of a High Contracting Party,
as specified in accordance with Article 10, may request the Court to give
advisory opinions on questions of principle relating to the interpretation or
application of the rights and freedoms defined in the Convention or the
protocols thereto.’

[9]Kadi and Al Barakaat
International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P,
EU:C:2008:461.

[11]For hints of that view, see Discussion document of the Court of Justice of the European Union
on certain aspects of the accession of the European Union to the European
Convention for the protection of Human Rights and Fundamental freedoms, May
2010, paras. 4-5

[12]See further A. Kornezow, ‘The Area of Freedom, Security and Justice in
the Light of the EU Accession to the ECHR—Is the Break-up Inevitable?’ (2012-13)
12 CYELS 227.